"Those who have the command of the arms in a country are masters of the state, and have it in their power to make what revolutions they please. [Thus,] there is no end to observations on the difference between the measures likely to be pursued by a minister backed by a standing army, and those of a court awed by the fear of an armed people."
—Aristotle (384-322 BC), Greek philosopher
"Murder being the very foundation of our social institutions, it is consequently the most imperious necessity of civilised life. If there were no murder, government of any sort would be inconceivable. For the admirable fact is that crime in general, and murder in particular, not simply excuses it but represents its only reason to exist ... Otherwise we would live in complete anarchy, something we find unimaginable ..."
—Octave Mirbeau (1848-1917), The Torture Garden
The state has a monopoly on behaviour usually deemed criminal. It murders, kidnaps, and locks up people. Sovereignty has come to be identified with the unbridled—and exclusive—exercise of violence. The emergence of modern international law has narrowed the field of permissible conduct. A sovereign can no longer commit genocide or ethnic cleansing with impunity, for instance.
Many acts—such as the waging of aggressive war, the mistreatment of minorities, the suppression of the freedom of association—hitherto sovereign privilege, have thankfully been criminalized. Many politicians, hitherto immune to international prosecution, are no longer so. Consider Yugoslavia's Milosevic and Chile's Pinochet.
But, the irony is that a similar trend of criminalization—within national legal systems—allows governments to oppress their citizenry to an extent previously unknown. Hitherto civil torts, permissible acts, and common behaviour patterns are routinely criminalized by legislators and regulators. Precious few are decriminalized.
Consider, for instance, the criminalization in the Economic Espionage Act (1996) of the misappropriation of trade secrets and the criminalization of the violation of copyrights in the Digital Millennium Copyright Act (2000)—both in the USA. These used to be civil torts. They still are in many countries. Drug use, common behaviour in England only fifty years ago—is now criminal. The list goes on.
Criminal laws pertaining to property have malignantly proliferated and pervaded every economic and private interaction. The result is a bewildering multitude of laws, regulations statutes, and acts.
The average Babylonian could have memorized and assimilated the Hammurabic Code thirty-seven centuries ago—it was short, simple, and intuitively just.
English criminal law—partly applicable in many of its former colonies, such as India, Pakistan, Canada, and Australia—is a mishmash of overlapping and contradictory statutes—some of these hundreds of years old—and court decisions, collectively known as "case law".
Despite the publishing of a Model Penal Code in 1962 by the American Law Institute, the criminal provisions of various states within the USA often conflict. The typical American can't hope to get acquainted with even a negligible fraction of his country's fiendishly complex and hopelessly brobdignagian criminal code. Such inevitable ignorance breeds criminal behaviour—sometimes inadvertently—and transforms many upright citizens into delinquents.
In the land of the free—the USA—close to 2 million adults are behind bars and another 4.5 million are on probation, most of them on drug charges. The costs of criminalization—both financial and social—are mind-boggling. According to The Economist, America's prison system costs it $54 billion a year—disregarding the price tag of law enforcement, the judiciary, lost product, and rehabilitation.
